Asjad Javaid Ghural, J.--Through this single judgment we propose to decide Criminal Appeal No. 227 of 2015 filed by Ismail. Khan and Muhammad Wasim, Criminal Appeal No. 223 of 2015 filed by Akhlaq Ahmad and Criminal Appeal No. 55-J of 2015 filed by Mst. Sumera Arif under Section 48 of the Control of Narcotic Substances Act. 1997 whereby they have challenged the wires of judgment dated 2. 03 2015 passed by a learned Additional Sessions Judge at Muzaffargarh in case FIR No. 01 dated 22.01.2011, in respect of an offence under Section 9-C of the Control of Narcotic Substances Act, 1997 registered at Police Station, I.P., Custom Intelligence, Multan whereny they were convicted and sentenced as under:-- Appellants Ismail and Wasim.
"Under Section 9 read with Section 15 of the Control of Narcotic Substances, Act, 1997 Rigorous imprisonment for life each and to pay the fine of Rs. 100,000/- each and in default thereof to further undergo simple imprisonment for one year.
Appellant Akhlaq Ahmad and Mst. Sumera Arif.
"Under Section 9 of the Control of Narcotic Substances, Act, 1997 Rigorous imprisonment for life each and to pay the fine of Rs. 100,000/- each and in default thereof to further undergo simple imprisonment for one year.
All the accused persons were extended the benefit of Section 382-B, Cr. P. C .
2. The prosecution story unfolded in the crime report Ex.PF/1) is that on 21.01.2011, a secret picket was set up by Qaswa r Shah, Intelligence Officer (PW- alongwith other police contingents at Chowk Baga Sher, Muzaffargarh on receiving a tip-off when at about 9:30 p.m., two cars bearing Registration No. LZV-774 and No. IDJ8565 arrived there. They signaled the cars to stop but the drivers of both the cars tried to flee away by accelerating the speed but their attempt to flee away was foiled by the officials through official vehicles. The vehicles were formally searched wherein car Bearing No. 774/LZV was found containing contraband substance. Both the cars were taken to the Police Station due to the apprehension of law and order situation and non-availability of scale where the vehicles were searched from inside and charas weighing 440-kilograms (P-1) packed in sixteen bags (P4/1-16) and one bag (Gattu) containing opium (P-2) weighing 47-kilograms was recovered from Car No. 774/LZV, which being driven by Ikhlaq Ahmad whereas appellant. Mst.
Sumaira Arif was sitting on the front seat of the said car. Appellants Ismail and Waseem were sitting in the other car Bearing No. IDJ-8565, who had disclosed that they were providing surveillance to Car No. 774/LZV carrying contraband substances. Out of recovered 16-bags (gattu), samples charas weighing 10/10 grams were separated from three bags whereas three samples weighing 10/10 grams were separated from the bag (gattu) containing opium. The cars as well as the recovered contraband substances were taken into possession vide recovery memo. Ex.PA.
3. At the commencement of the trial, the learned trial Court had framed a charge against the appellants and their co-accused Ghulam Abbas to which they had pleaded not guilty and claimed to be tried.
4. The prosecution had produced 03-witnesses besides the reports of Chemical Examiner (Ex.PR & Ex.PS). The appellants and their co-accused, in their statements recorded under Section 342, Cr.P.C. had denied and controverted all the allegations leveled against them, they neither opted to make their statements under Section 340(2), Cr.P.C. nor had they produced any witness in their defence.
5. Learned trial Court, upon conclusion of the trial proceeded to acquit co-accused Ghulam Abbas whereas the appellants were convicted and sentenced supra, hence the aforementioned criminal appeals.
6. We have heard learned counsel for the appellants, learned Deputy Prosecutor General appearing for the State and have perused the available record.
7. In order to prove the guilt of the appellants, the prosecution had produced Qaswar Shah, Inspector Intelligence (PW-1), Ch. Munir Ahmad, Intelligence Officer (PW-2) and Mehar Khan Head Constable (PW-3). The raiding party was headed by Qaswar Shah, Inspector Intelligence whereas both the remaining witnesses were members of the raiding party when the appellants were apprehended and found in possession of the contraband substances., Qaswar Shah, Inspector Intelligence had made a consistent statement in the dock in the trial Court what he had averred at the time of registration of crime report Ex.PF/1 and deposed that on 21.01.2011, he alongwith other police contingents had set up a secret picket at Chowk Baga Sher, Muzaffargarh on a tip-off when at about 9:30 p.m., two cars bearing Registration No. LZV-774 and No. IDJ-8565 arrived there, they were signaled to stop but drivers of both the cars tried to accelerate the speed to flee away but their attempt to flee away was foiled by the officials through official vehicles, the cars were formally searched whereupon car Bearing No. 774/LZV was found containing contraband substances, both the cars as well as the accused persons were taken to the Police Station due to the apprehension of law and order situation and non-availability of scaling material. The vehicles were searched from inside and charas weighing 440-kilograms (P-1) packed in sixteen bags (P-1/1-16) and one bag (Gattu) containing opium (P-2) weighing 47-kilograms was recovered from Car No. 774/LZV, which was being driven by Ikhlaq Ahmad whereas appellant Mst. Sumaira Arif was sitting on the front seat of said car. Appellants Ismail and Waseem were sitting in the other car Bearing No. IDJ- 8565, who had disclosed that they were providing surveillance to Car No. 774/LZV, which was carrying contraband substances, out of 16-bags (gattu), samples charas weighing 10/10 grams were separated from three bags whereas three samples weighing 10/10 grams were separated from the bag (gattu) containing opium. The cars as well as the recovered contraband substances were taken into possession vide recovery memo. Ex.PA. Ch. Muneer Ahmad, Intelligence Officer (PW-2) and Mehar Khan, Head Constable (PW-3) supplemented the complainant on all material particulars of the incident but the fact remains that Qaswar Shah, Inspector Intelligence had not only performed his duty as complainant but also he had investigated the case and sent the parcel to the office of the Punjab Chemical Examiner of his own. We have noticed that the entire record is silent with regard to the number of slabs in each recovered Gattu, however it was claimed that 16- bags containing charas weighing 440-grams had been recovered from the car being driven by appellant Ikhlaq Ahmad, who was accompanied by accused Mst. Sumera Arif on front seat but the fact remains that one sample of 10-grams charas could not be taken as a representative of the entire contraband substance shown to be possessed by them. It is uncertain that from which bag and which slab in the bag, the complainant had separated the samples. During cross- examination, Qaswa r Shah, Inspector Intelligence had deposed that "It is correct that I have not mentioned in my complaint Ex.PF and recovery memo. Ex.PA the number of slabs of Charas and number of "Rorras" of Opium. I did not weight each slabs and "Rorra" separately. I cannot tell the weight of each slab and each "Rorra". I cannot specify the "Gattoo" of charas P-1 to P-16 from which samples were drawn for chemical analysis. Similarly, I cannot specify the slab from which I drawn samples and I cannot tell accurately the weight of that slab from which sample was drawn.
I cannot tell the weight of "Rorra" of opium from which samples were drawn for chemical analysis. I also cannot specify "Rorra" from which the sample was drawn."
8. Though the remaining prosecution witnesses have supported the complainant but when the complainant himself has failed to specify the number of slabs and "Rorra" of charas and opium respectively then the supportive piece of evidence is not much helpful to the prosecution to bring home guilt of the appellants to the extent of whole recovered contraband substance as no positive report with regard to the entire contraband substance is available on record. The samples of 10/10 grams charas from three bags and 10/10 grams opium from one bag had been separated but the positive reports Ex.PR & Ex.PS relate to the extent of 10-grams charas and 10-grams opium. The prosecution is bound to prove the factum of recovery of narcotic substance through oral as well as the positive report of the analyzer and the sample must be the representative of the entire narcotic contraband substance. The sample had to be taken from each slab, cake, packet or tablet etc. and at the same time the prosecution is bound to prove its safe custody up to the office of the analyzer beyond any shadow of doubt. From the evidence available on record, it has been established that the complainant had not weighed each slab and "Rorra" separately and that is why the weight of each slab and "Rorra" could not be established. In the given circumstances, at the most the appellants could be held responsible for keeping the quantity of narcotic substance, which was sent to the office of Chemical Examiner and was tested with positive result. We week guidance from renowned case titled "Ameer Zeb versus The State" (PLD 2012 Supreme Court 380), wherein it has been held as under: "For the purposes of clarity and removal of confusion it is declared that where any narcotic substance is allegedly recovered while contained in different packets, wrappers or containers of any kind or in the shape of separate cakes, slabs or any other individual and separate physical form it is necessary that a separate sample is to be taken from every separate packet, wrapper or container and form every separate cake, slab or other form for chemical analysis and if that is not done then only that quantity of narcotics substance is to be considered against the accused person from which a sample was taken and tested with a positive result. "
9. The positive reports of the Chemical Examiner (Ex.PR & Ex.PS) shows the number of packets as one packet containing charas 10-grams and one packet containing opium 10-grams. It is concluded that each appellant was responsible for having one slab of charas and opium respectively in their possession punishable under Section 9(b) of the Control of Narcotic Substances Act, 1997.
10.For the foregoing reasons, all three captioned appeals are hereby dismissed by converting the conviction of the appellants from Section 9(c) into one under Section 9(b) of the Act ibid and they are sentenced according to the sentencing policy contained in case titled "Ghulam Murtaza and another versus The State" (PI) 2009 Lahore 362)" to simple imprisonment for three months each with the fine of Rs. 1000/- each and in default thereof to further undergo simple imprisonment for 15-days each for keeping 10-grams of charas.
They are further sentenced to simple imprisonment for five months each with the fine of Rs. 2000/- each and in default thereof to further undergo simple imprisonment for one month each for keeping 10-grams of opium.
The appellants are extended the benefit of Section 382-B, Cr.P.C. Both the aforesaid sentences are directed to run concurrently.